Citation Nr: 1706193
Decision Date: 03/01/17 Archive Date: 03/16/17
DOCKET NO. 11-14 939 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUE
Entitlement to a rating in excess of 10 percent for a postoperative left shoulder condition (hereinafter "left shoulder disability") from August 22, 2008, to October 9, 2015, and in excess of 20 percent from October 10, 2015, thereafter.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. Connally, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant in this case, had service from March 1993 to March 1997, March 2003 to May 2003, July 2004 to April 2006, and June 2007 to August 2008.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2009 and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Columbia, South Carolina and Decatur, Georgia.
The Veteran previously requested a Board hearing, but submitted timely correspondence in January 2015 to withdraw this request. Accordingly, the request is deemed withdrawn and the Board may proceed with adjudication. 38 C.F.R. § 20.704(e) (2016).
The Board previously considered this appeal in April 2015, and remanded this issue for further development in order to schedule a VA examination and obtain updated treatment records. That development was completed, and the case returned to the Board for further appellate review.
FINDINGS OF FACT
Since August 22, 2008, the Veteran's left shoulder disability was manifested by symptoms of pain and limited arm motion at both the shoulder level and midway between side and shoulder level.
CONCLUSION OF LAW
The criteria for a disability rating of 20 percent, and no higher, for a left shoulder disability since August 22, 2008, have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5003, 5201 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.
When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.
Staged Ratings for a Left Shoulder Disability
The Veteran contends that he is entitled to staged ratings in excess of 10 percent for a left shoulder disability, from August 22, 2008, to October 9, 2015, and in excess of 20 percent for the period thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2016). The Veteran was previously rated under Diagnostic Code 5010-5003 until he received a 20 percent rating under DC 5201 on October 10, 2015.
Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.
In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.
Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
The left shoulder, shown throughout the record to be the minor extremity, was previously rated at 10 percent under DC 5010-5003. See 38 C.F.R. § 4.27 (regarding use of DCs and rating by analogy). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, DC 5003, which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations.
The normal range of motion of shoulder for flexion and abduction is from 0 degrees at the side to 180 degrees over head. 38 C.F.R. § 4.71, Plate I (2016). Shoulder level is at 90 degrees, and exactly midway between the side and shoulder level is at approximately 45 degrees.
Under DC 5201, a 20 percent rating is assigned for limitation of the minor or major arm to shoulder level. If there is limitation of the shoulder midway between side and shoulder level a 20 percent rating is also assigned for the minor arm, but a 30 percent rating is assigned for the major arm. If the limitation is 25 degrees from the side, a 30 percent rating is assigned for the minor arm; 40 percent for the major arm. Id. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see also 38 C.F.R. § 4.71, Plate I.
Ankylosis of the scapulohumeral articulation is addressed under DC 5200 and other impairment of the humerus is covered under DC 5202. 38 C.F.R. § 4.71a. Finally, impairment of the scapula is addressed under DC 5203. Id. However, the record does not show such Diagnostic Codes are relevant for the Veteran's left shoulder disability as further discussed below.
In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45.
After a full review of the record, and as discussed below, the Board concludes that a rating of 20 percent from August 22, 2008, is warranted. However, a rating in excess of 20 percent for a left shoulder disability is not warranted.
By way of history, the Veteran was initially granted service connection for the left shoulder in a September 1997 rating decision. At that time a noncompensable evaluation was assigned effective March 19, 1997. A March 1998 rating decision increased the rating of the left shoulder to 10 percent. As noted in the Introduction, the Veteran had several subsequent periods of active duty. After his most recent tour of duty which ended in August 2008, the Veteran submitted a statement in August 2008 enclosing medical records from his recent deployment to Iraq and noting his chief concern was his ongoing left shoulder pain. The RO reinstated benefits but continued the 10 percent rating and this appeal followed.
VA treatment records from February 2007 to July 2015 note the Veteran's reports of left shoulder pain. However, these records do not contain any objective findings documenting limitation of motion in degrees of motion.
The Veteran received a VA examination in December 2008. He was noted to be right hand dominant. He endorsed left shoulder pain, stiffness, heat, and decreased endurance. He reported that the pain can be elicited with physical activity and can be relieved with rest and over-the-counter pain medication. Physical examination revealed tenderness to palpation and guarding of movement. There was no evidence of edema, effusion, weakness, redness, heat or subluxation. The range of motion for the left shoulder was 120 degrees of flexion (180 is normal) with pain at 90 degrees, 100 degrees of abduction (180 is normal), with pain at 70 degrees, 60 degrees of internal rotation (90 is normal) with pain at 40 degrees, and 60 degrees of external rotation (90 is normal) with pain at 40 degrees. Following repetitive use testing, additional limitation was noted by pain, but no additional limitation was noted from fatigue, weakness, or lack of endurance or incoordination. The examiner specified, however, that the additional limitation from pain did not result in additional limitation in degrees of motion. X-ray evidence revealed normal findings. The examiner diagnosed left rotator cuff strain, status post-surgery for rotator cuff tear. The examiner noted that the Veteran's left shoulder subjective factors were pain and stiffness. The objective factors were found to be decreased range of motion with pain and x-ray evidence of prior surgery.
An August 2011 private treatment record reflected the Vetera was seen for left shoulder pain. He also described the shoulder as "feeling loose." Pain was described as sharp and dull and located in the anterior and lateral aspects of the shoulder. The shoulder was tender to palpation along the posterior aspect and lateral aspect of the shoulder joint. Range of motion was limited to 165 degrees of flexion, 160 degrees of abduction, internal rotation to the patient's side and external rotation to 45 degrees. Private treatment records in August 2012 noted flexion t o170 degrees and abduction to 160 degrees. Pain was noted with the extremes of range of motion.
The Veteran received another VA examination in October 2015. At this time, the Veteran endorsed continued left shoulder pain with occasional radiation down the side of the shoulder. He said that the left shoulder pain is more severe in the winter and is aggravated whenever he carries heavy objects or raises his left arm above his head. He said that these symptoms are improved with rest and alternating heat and ice applications. The Veteran reported flare-ups due to physical activities that require use of his arms to carry heavy objects or lift his arm above his head. He said that flare-ups occur two to three times per month on average, but occur more frequently during the summer months due to increased physical activity. The Veteran reported functional impairment of the left shoulder included ability to do yard work, pick up his toddler child, or carry equipment at work, such as audiovisual equipment.
On physical examination, range of motion testing revealed left shoulder flexion and abduction to 90 degrees, each, as well as external and internal rotation to 50 degrees, each. Ranges of motion results were found to contribute to functional loss due to the Veteran's inability to raise his left arm above his head. There was no evidence of pain with weight bearing, objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus. There was no additional functional loss or range of motion after repetitive use testing was performed. The examiner did not find that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. Muscle strength testing revealed active movement against some resistance in both forward flexion and abduction. There was no ankylosis found on examination. Rotator cuff testing did not reveal any abnormalities. Shoulder instability, dislocation, or labral pathology was not suspected. A clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition was also not suspected. There was no loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. The Veteran did not have malunion of the humerus with moderate or marked deformity. According to the VA examiner, there were no other pertinent physical findings, complications, conditions, signs or symptoms related to the left shoulder disability.
During range of motion testing, the October 2015 VA examiner noted that the Veteran was afraid of his shoulder being dislocated and that his effort during range of motion testing was limited. The examiner also noted that the Veteran has a history of reconstruction surgery to his left shoulder due to an injury and his VA treatment records show continued reports of pain in his left shoulder. In addition, x-rays showed abnormalities of the head and neck junction. The VA examiner found that the functional impairment of the Veteran's left shoulder disability was such that his symptoms are heightened by physical activities, which in turn "may limit his ability to perform tasks associated with physical work that requires periods of raising his left arm above his head or lifting heavy objects (greater than 25 pounds)." The examiner concluded that "the condition likely has no impact on his ability to perform sedentary work."
The Veteran contended that his left shoulder was not adequately assessed by the December 2008 VA examiner, in that he was not able to raise his arm to his side when he has flare-ups and that these symptoms were not acknowledged by the December 2008 VA examination. However, the Board notes that the December 2008 VA examiner was specifically asked to consider the effects of pain, fatigue, weakness, and lack of endurance following repetitive use. After examining the Veteran and considering his complaints, the examiner still found motion, albeit limited. Both the Court and the Federal Circuit have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). The Court held in Cox at 569 that "the Board is entitled to assume the competence of a VA examiner." See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners).
When considering the effects of pain, the record that suggests the pain resulted in a functional loss akin to the left shoulder being limited in motion at the shoulder level (flexion) and also midway between the side and shoulder level (internal rotation), but not to the level of 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Nonetheless, the Board has finds that the December 2008 examination did show limited arm motion at the shoulder level and also midway between the side and shoulder level. Both limitations of the left shoulder result in a single 20 percent rating because they occurred in the Veteran's minor arm. Accordingly, the Board will grant an increased 20 percent evaluation from August 22, 2008, the date after his separation from his most recent period of service. See e.g. 3.400 (b)(2) (providing for an effective date of the day following separation from active service if the claim is received within one year after separation).
The Veteran does not meet the DC 5201 criteria for a rating in excess of 20 percent at any time since August 22, 2008, because he has not been shown to have limited range of left shoulder motion to 25 degrees from the side for the minor/non-dominant arm. As noted above, even when considering the effects of pain, during the December 2008 examination, the motion was limited to 90 degrees of flexion, 70 degrees of abduction and 40 degrees of rotation. Likewise, during the October 2015 examination, even when considering pain, the motion was limited to 90 degrees of flexion and abduction and 50 degrees of rotation. Thus, on both examinations, the findings of flexion and abduction more nearly approximate a finding of limitation to shoulder level and the findings for rotation more nearly approximate a finding of midway between shoulder and side. Private treatment records reflected even more motion than noted on the two VA examinations, although the Board notes that the private physician did not specify the point where pain began. In sum, none of the motion findings more nearly approximate a finding of 25 degrees from the side.
The Board has also considered whether a higher or separate rating may be warranted under an alternative Diagnostic Code, and finds that because the Veteran has been diagnosed with status postoperative left shoulder condition, DC 5201 remains the most appropriate Code under which to rate the service-connected left shoulder disability for this period of the appeal. See Butts, 5 Vet. App. at 532. The Board has considered the applicability of rating the disability under Diagnostic Codes 5200, 5202, and 5203; however, on VA examination in October 2015, the examiner specifically ruled out any ankylosis, as well as impairment of the humerus, clavicle, or scapula. The December 2008 VA examiner also noted that the Veteran does not have not have weakness, swelling, redness, giving way, locking, fatigability, or dislocation. It is noted that service connection has also been established separately for a surgical scar of the left shoulder because it is associated with his postoperative surgery, but this disability, as separately rated, is not the subject of this appeal and is not herein further addressed.
Furthermore, the Board has considered whether a higher rating is warranted based on functional loss due to pain or due to other factors including weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 207-08. Since August 22, 2008, the Veteran has been in receipt of a 20 percent rating for his left shoulder disability due to painful, limited motion to the shoulder level and also midway between the side and shoulder level for his minor arm. See 38 C.F.R. § 4.59; Mitchell, 25 Vet. App. at 32. A higher rating is not warranted because both VA examiners' findings objectively showed, at most, limited arm flexion at the shoulder level (flexion) and also midway between the side and shoulder level (internal rotation) with pain. The 20 percent rating appropriately encompasses the Veteran's left shoulder disability as the October 2015 VA examiner also found that the functional impairment of the Veteran's left shoulder disability was such that his symptoms are heightened by physical activities, which in turn "may limit his ability to perform tasks associated with physical work that requires periods of raising his left arm above his head or lifting heavy objects (greater than 25 pounds)." The VA examiner concluded that "the condition likely has no impact on his ability to perform sedentary work." Moreover, VA treatment records do not contain any objective findings of limited arm motion to support a higher rating.
The Board concludes that the Veteran's left shoulder disability has been no more than 20 percent disabling since August 22, 2008. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.
TDIU and Extraschedular Consideration
The Court has indicated that in claims for increased ratings the Board must consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence does not indicate that the Veteran's left shoulder disability made him unable to secure or follow any substantially gainful occupation; therefore, the record does not raise the issue of unemployability.
The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected left shoulder disability. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008).
First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id.
If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).
If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id.
In this case, the schedular rating criteria used to rate the Veteran's service-connected left shoulder disability above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of limited motion; thus, the demonstrated manifestations specifically associated with his service-connected left shoulder disability - namely pain and limited motion at the shoulder level - are contemplated by the provisions of the rating schedule as previously outlined in 38 C.F.R. § 4.71a, DC 5201. As the Veteran's disability picture for the entire appeal period is contemplated by the rating schedule, the assigned schedular evaluation is adequate and the first step of Thun has not been met.
Additionally, he has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's left shoulder disability, and referral for consideration of an extra-schedular evaluation is not warranted.
Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). For an increased-compensation claim, the US Court of Appeals of Veterans Claims (the Court) has held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Such notice was provided in the letter sent to the Veteran in November 2008. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA.
Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). Here, service records have been obtained as have records of VA and private treatment. Based on the foregoing, the Board finds that VA has met its duty to assist with regard to records development.
The Veteran was afforded VA examinations with respect to his claim in December 2008 and October 2015. During those examinations, the VA examiners conducted physical examinations of the Veteran with diagnostic testing, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examinations that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met regarding the matter on appeal. 38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion).
All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements, and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).
As noted in the Introduction, the Board previously remanded this claim in April 2015. The Board instructed the AOJ to schedule the Veteran for another VA examination, request updated VA treatment records, and then readjudicate the claim on appeal with consideration of the additional evidence associated with the claims folder. Since that time, VA issued a supplemental statement of the case that considered the additional, new evidence. As a result, the Board finds substantial compliance with its previous remand instructions, and has properly continued with the foregoing decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders).
ORDER
A rating of 20 percent, and no higher, for a postoperative left shoulder condition since August 22, 2008, is granted.
____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs